Picture: THINKSTOCK
Picture: THINKSTOCK

THE Constitutional Court has nine black judges and two white. In a judgment handed down a fortnight ago, the court divided nine to two, black to white. The judges had harsh things to say to one another. And the questions that divided them concerned race, culture, belonging and respect. Never before have the politics of race inside the court itself been on such stark display.

The case concerned the replacement of apartheid-era street names. In 2015, AfriForum was granted an order restraining the City of Tshwane from changing the names of streets on the basis that proper public consultations had not yet been held. Tshwane appealed against the restraining order and lost in the Supreme Court of Appeal. It then appealed to the Constitutional Court. This time it won.

Much of the case concerned how to deal with appeals against interim orders. There isn’t space to talk about that here and this column concerns itself with only some of the issues that divided the judges.

In finding for Tshwane, Chief Justice Mogoeng Mogoeng did little to conceal his contempt for AfriForum’s case. AfriForum had argued that the names of Afrikaners on street signs represented a cultural heritage and their removal would rob Afrikaans people of a sense of belonging.

This, Mogoeng argued, was "sophistry". Actually, AfriForum was mourning a time when honour was conferred upon white people alone. What upset them was less the removal of white names than their replacement with black names. At the core of AfriForum’s grief was their distaste for conferring honour upon black people.

A foundational value of the constitutional order, Mogoeng continued, was ubuntu. Among other things, ubuntu insists that "one only becomes complete when others are appreciated, accommodated and respected".

Whites living under a democratic dispensation ought to recalibrate what it means to be a person, Mogoeng suggested. To be fully human is to respect others.

Judges Johan Froneman and Edwin Cameron dissented. Mogoeng’s judgment, they argued, implied that in so far as white people’s sense of cultural belonging was rooted in a history of oppression, it ought not be protected by the Constitution.

Where, then, does the argument end, they asked. Mahatma Gandhi expressed opinions that are today considered racist. And the founder of the Zulu nation, Shaka, wreaked terror. Everybody’s sense of belonging relies upon a tainted history. Does this mean nobody’s sense of belonging is protected by the Constitution?

Most remarkable about this exchange was how closely it echoed the slanging matches that have invaded talk radio. The language was more sophisticated, the reasoning more sound, but the mutual recriminations about history were much the same. One is reminded that no institution in the country is exempt from the recriminatory language that has come to dominate our public sphere: we are all sparring with one another now.

Much more powerful was a second argument Froneman and Cameron lodged against their colleagues. What if AfriForum members did not, in fact, embrace ubuntu? Must their sense of belonging then lose constitutional protection? Mogoeng’s answer, they contend, was yes.

The majority’s judgment commands ordinary South Africans how to think, Froneman and Cameron argued. And it simply isn’t a judge’s place to do this. "The Constitution," they wrote "is broad and inclusive enough for our unity in diversity to survive even by recognising and including those who differ radically and wrongly from the (philosophy) espoused in (Mogoeng’s) judgment."

READ THIS: Racism and cultural identity two sides of the same coin

Here we come to the nub of the disagreement. Mogoeng’s is a judgment written primarily in the currency of sarcasm, a rhetorical form born from a desire to hurt. It speaks of dishonour and disrespect. Its abiding spirit is combative.

Between the lines of his judgment, I think, is an urge to punish. Unreconstructed white people should not get away with what is happening in their heads. In this, Mogoeng joins a loud chorus. Across the black middle classes, there is a growing sense that in the 1994 settlement, white people got away with too much.

You may feel this as a black South African, Froneman and Cameron seem to be saying. But you ought not act upon it as a judge.

The stakes could not be higher.

We are witnessing an early round in a new and urgent battle over what the Constitution is for.

• Steinberg teaches African studies at Oxford University and is a visiting professor at the Wits Institute for Social and Economic Research